Excerpt:.....comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - the patient had complained of pain in the right iliac region suspected of appendictis. 10. it is true that even if the accused failed to prove alibi, the prosecution has to prove the guilt beyond any manner of reasonable doubt. the injured were taking their meals and the presence of the three witnesses on the scene of occurrence was well established and balwan singh was likely to have seen the actual occurrence......2) and tale ram (kale ram ?) (p.w. 6) were sitting on a cot eating their meal outside the house of dalel singh in village matiala, p.s. najafgarh, pataso (p.w. 5), wife of his brother hem chander, was cooking the meal, chandro (p.w. 8) his sister, was sitting near pataso and his brother balwan singh (p.w. 1) was serving the meal. then arrived the accused, jagmohan held dalel singh, while rajbir singh stabbed him with a knife; when tale ram intervened, jagmohan stabbed him. upon hearing the cries of the injured, balwan singh, pataso and chandro rushed out of the house. desa (p.w. 13) who was returning home also reached there. they saw the occurrence, raj singh (p.w. 7) took the injured to the safdarjung hospital, new delhi, after midnight. dr. i. s. rao (p.w. 3) examination tale ram, dr......

Judgment:ORDER

1. On April 29, 1975, at about 10.30 or 11.00 p.m., Dalel Singh (P.W. 2) and Tale Ram (Kale Ram ?) (P.W. 6) were sitting on a cot eating their meal outside the house of Dalel Singh in village Matiala, P.S. Najafgarh, Pataso (P.W. 5), wife of his brother Hem Chander, was cooking the meal, Chandro (P.W. 8) his sister, was sitting near Pataso and his brother Balwan Singh (P.W. 1) was serving the meal. Then arrived the accused, Jagmohan held Dalel Singh, while Rajbir Singh stabbed him with a knife; when Tale Ram intervened, Jagmohan stabbed him. Upon hearing the cries of the injured, Balwan Singh, Pataso and Chandro rushed out of the house. Desa (P.W. 13) who was returning home also reached there. They saw the occurrence, Raj Singh (P.W. 7) took the injured to the Safdarjung Hospital, New Delhi, after midnight. Dr. I. S. Rao (P.W. 3) examination Tale Ram, Dr. P. K. Julka (P.W. 4) examined Dalel Singh. Tale Ram was found to have sustained the following injuries :-

(2) Incised wound 2.5 cm. x 1 cm., middle of left side of chest with haematoma;

(3) Incised wound 2.5 cm. x 1 cm., on the posterior aspect of the left shoulder.

He was conscious and breath was smelling alcohol. Injuries were simple caused by sharp weapon.

2. The injuries of Dalel Singh were :-

(1) Incised wound 2' long on the left side of the chest laterally in the ninth intercostal space.

(2) The Surgeon made exploratory laparotomy and discovered a lacerated wound on the left kidney and supra-renal, with big retro peritoneal haematoma. This injury was described as grievous caused by a sharp object and would have been fatal in the ordinary course of nature but for the medical aid.

3. The duty constable Amar Singh (P.W. 10) informed the police station. When Sukh Chand, S.I., (P.W. 14), came to the hospital, the doctor concerned conveyed to him on his application (Ex. P.W. 14/C) that the injured were unfit to make a statement.

4. Upon a report of the police, the accused were charged under Ss. 307/34, I.P.C. The accused pleaded not guilty and further pleaded alibi. Dr. Mahinder Kumar (D.W. 2) of Civil Hospital, Rewari, deposed that on April, 29, 1975, at 7.45 p.m. one Jagmohan, son of Nand Rup, care of Fakir Chand, Arhti, was admitted as indoor patient and was discharged on May 3, 1975. The indoor ticket was in his hand and was signed by the said Jagmohan. The entry in the Register was made by the nurse Susan Mishra. The patient had complained of pain in the right iliac region suspected of appendictis. He was given injections of Baralgan and Penicillin. Nathi Singh (D.W. 4) of Shaikhpur, District Gurgaon, deposed that Rajbir Singh lived with him and was with him on April, 29, 1975.

5. The learned Addl. Sessions Judge by his order of April, 20, 1977, gave the benefit of doubt to the accused and acquitted them. Dalel Singh has filed this revision.

6. The learned trial Judge believed the plea of alibi on the basis of the statement of Dr. Mahinder Kumar (D.W. 2) and then disbelieved the eye-witnesses Balwan Singh, Pataso, Chandro and Desa because they rushed to the scene after hearing the cries of the victims and by then the attack should have already been over. Further reasons for discarding the eye-witnesses were their relationship and previous involvement in criminal cases. The witnesses also disagreed whether the injured were carried to the road on a cot, walked on foot, or the car came to collect them at their doorstep. Balwan Singh was further disbelieved because, (1) he introduction a false motive that Jagmohan had said that he would teach a lesson to the victims for having implicated him in theft of bricks but Dalel Singh and Tale Ram have not alleged any such remark; (2) he deposed that Rajbir Singh accused had given more than one knife blow to Dalel Singh, but Dalel Singh and Tale Ram deposed that only one blow was given to Dalel Singh; (3) the conduct of Balwan Singh was not natural, inasmuch as he did not go to the police station and continued to remain at the place of occurrence until the police arrived.

7. Dalel Singh, Raj Singh and Desa witnesses have stated that Dalel Singh had become unconscious at the place of occurrence, but the medical evidence goes to show that there was no history of unconscious. And yet they did not give the names of their assailants to the duty constable and the doctor, nor did they go to the police station.

8. Tale Ram was chowkidar in the local school and was supposed to be on duty at the time of occurrence but did not inform the school authorities about his absence from the school. He was, thereforee, not relied upon. F.I.R. was delayed by 20 hours and the delay was not satisfactorily explained.

9. I have considered. While discussing the plea of alibi, the learned Judge misdirected himself by applying S. 105 of the Evidence Act which is applicable to exceptions and not to alibi. Alibi is not an exception under the Penal Code or any other law. Alibi is governed by S. 11 of the Evidence Act and the burden to prove an alibi is always on the accused and he must prove it to the satisfaction of the Court; see Gurcharan Singh v. State of Punjab, : 1956CriLJ827 ; Chandrika Prasad Singh v. State of Bihar, : 1972CriLJ22 and Soma Bhai v. State of Gujarat, : 1975CriLJ1201 . This burden cannot be discharged by showing merely a preponderance of probabilities in his favor. As envisaged by S. 11, he has to show a high degree of probability in his favor. In Satya Vir v. State : AIR1958All746 , it was remarked that the omission on the part of the accused to produce all important evidence in support of his plea which could have easily been produced, would raise a presumption against him under Illustration (g) to S. 114, Evidence Act, 1872, that it would, if produced, have been unfavorable to him. The accused did not produce the nurse who made the entries in the indoor register. There is no evidence to prove that the accused was the person who was admitted and whose name was entered in the register. Dr. Mahinder Pal has also not said that the accused was the same person. On the indoor ticket (Ex. D.W. 2/B), the signatures of the Patient were obtained by him on top at point 'A'. There were no signatures on the so-called discharge slip (Ex. D.W. 2/A) and yet the learned Judge stated that he compared the signatures on the discharge slip and the indoor slip with the admitted signatures of Jagmohan on his statement under S. 313, Cr.P.C. He made a mis-statement that the so-called discharge slip contained the signatures of the accused. He was erroneous because he compared the signatures of the accused which were made after the occurrence. The true comparison was possible only if the admitted signatures were of the time before the controversy arose. The distance of the hospital from the place of occurrence is 80 Kms. There is nothing impossible that the accused after his admission in the hospital could escape, travel this distance, commit the crime and return. The alibi was, thereforee, held to have been proved both on wrong facts and improper appreciation of law.

10. It is true that even if the accused failed to prove alibi, the prosecution has to prove the guilt beyond any manner of reasonable doubt. But the reasons given by the learned Judge for disbelieving the eye-witnesses are also not sound. There may have been previous history of litigation and enmity but that is double-edged weapon and this aspect the learned Judge had ignored. There has been no delay in the F.I.R. because as soon as the duty constable came to know that the injured had come to the hospital, he informed the police station and that in fact is the F.I.R. The first concern of the friends and relatives of the injured would be to send them to a hospital instead of rushing to the police station. There is nothing un-natural in the conduct of Balwan Singh in not rushing to the hospital or to the police station and in remaining behind to await the arrival of the police. The injured were taking their meals and the presence of the three witnesses on the scene of occurrence was well established and Balwan Singh was likely to have seen the actual occurrence. There is no requirement of law that the names of the assailants should have been disclosed by the victims to the duty constable or to the doctors. From the evidence of the investigation officer, it appears that at that time they were not fit to give any statement, I am thereforee of the view that the entire approach of the trial Court was manifestly illegal and unjust. The acquittal of the accused was unjustified and calls for interference.

11. In a case which proceeds on a police report, though a private party has no locus standi, yet it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties though the State may not have thought fit to appeal but this jurisdiction should be exercised only where there is some glaring defect in the procedure or manifest error on a point of law, want of jurisdiction or improper admission or rejection of material evidence and consequently, a flagrant miscarriage of justice. But all the same, it cannot reappraise the evidence as if in an appeal, as an expression of opinion by the High Court on the evidence may in case of re-trial, load the dice against the accused. It may amount to a direction to convict by an indirect method of ordering re-trial when it cannot directly convert a finding of acquittal into a finding of conviction as enjoined by Section 401(3), Cr.P.C., see K. Chinnaswamy Reddy v. State of Andhra Pradesh, : [1963]3SCR412 ; Thakur Ram v. State of Bihar, : 1966CriLJ700 ; Mahendra Pratap Singh v. Sarju Singh, 1968 Cri LJ 865 (SC); Chagani Kotaiah v. Gogineni Venkateshwara Rao, : 1973CriLJ978 ; Akalu Ahir v. Ramdeo Ram, : 1973CriLJ1404 and Satyendra Nath v. Ram Narain, : [1975]2SCR743 I have, thereforee refrained from examining the merits of the case in greater detail and discussing the various authorities cited by the learned counsel for the respondent in support of the criticism of the witnesses under-taken by the learned trial Judge and have contented myself with making broad references and stating the law in correct perspective. I have noticed above the manifest errors of law that have caused miscarriage of justice.

12. Accordingly, I accept this revision petition, set aside the impugned judgment, and would have directed re-trial but that may cause harassment and provide an opportunity to both the sides to improve their cases. I, thereforee, remand the case thereafter unhampered by my observations except those respecting law as was directed in Purushottam Raghunath v. State of Maharashtra 1973 Mah LJ 108 : 1973 Cri LJ 1004.